Dalton v The State of South Australia (in Right of the Department for Families & Communities) (No 3)
[2010] SASC 179
•5 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
DALTON v THE STATE OF SOUTH AUSTRALIA (IN RIGHT OF THE DEPARTMENT FOR FAMILIES & COMMUNITIES) & ANOR (No 3)
[2010] SASC 179
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Nyland)
5 July 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - JURISDICTION OF COURTS, TRIBUNALS, COMMISSIONS AND BOARDS
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - RIGHT OF APPEAL
Application for judicial review of a decision of Full Bench of Workers Compensation Tribunal (WCT) - Full Bench allowed an appeal and set aside determination of an Auxiliary Judge of the WCT without reversing findings that were sufficient to support that determination - whether Full Bench acted in excess or want of jurisdiction in allowing appeal - finding of an error affecting determination is a condition of jurisdiction to allow appeal - decision of Full Bench quashed - matter not remitted.
Workers Rehabilitation and Compensation Act 1986 (SA) ss 30A, 30B, 53, 86(1), 86A(2), 88I, 90, 94A, 94C, referred to.
Dalton v The State of South Australia (In the Right of the Department for Families and Communities) (2010) 106 SASR 279; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194, discussed.
South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal (2009) 105 SASR 1, considered.
DALTON v THE STATE OF SOUTH AUSTRALIA (IN RIGHT OF THE DEPARTMENT FOR FAMILIES & COMMUNITIES) & ANOR (No 3)
[2010] SASC 179Full Court: Doyle CJ, Duggan and Nyland JJ
DOYLE CJ: Mrs Dalton has applied for an order for judicial review, setting aside a decision by the Full Bench of the Worker’s Compensation Tribunal (the Tribunal). The Full Bench allowed an appeal against a decision in favour of Mrs Dalton by a Deputy President of the Tribunal. The Deputy President determined that Mrs Dalton was entitled to payment of compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act).
Mrs Dalton claims that the Full Bench exceeded its jurisdiction. The Full Bench had jurisdiction to decide an appeal that lay “on a question of law”: s 86(1) of the Act. She claims that the appeal did not raise a question of law. On this basis she claims that the Full Bench lacked jurisdiction to determine the appeal.
At the hearing this Court gave permission for a further ground to be raised. The ground is that in allowing the appeal the Full Bench exceeded its jurisdiction, or acted without jurisdiction, because it set aside the determination of the Deputy President without reversing findings by the Deputy President that were sufficient to support the determination that he made. In other words, the Full Bench allowed the appeal and set aside the determination without finding that the determination was wrong.
I consider that the Full Bench acted without jurisdiction or in excess of its jurisdiction in both respects. I would quash the decision. I would not remit the matter to the Tribunal for further consideration by the Full Bench. My reasons follow.
Background
Mrs Dalton made a claim for compensation on 30 September 2003. She claimed that in the course of her employment in a government department she sustained psychological injury. By letter dated 14 March 2005 an officer of the Department determined the claim and rejected it: see s 53 of the Act. The grounds for that determination were as follows:
You were employed with the (former) Department of Human Services as the Manager of the Modbury District Office of Family and Youth Services;
In April 2003 a departmental investigation began into the misappropriation of FAYS funds relating to domestic violence financial assistance payments authorised by you;
On 2 May 2003 the department suspended you without pay until the allegations were fully investigated;
On 23 May 2003 you resigned your employment with the department;
An internal audit has determined that $1.3 million of FAYS funds is unaccounted for since 1994;
The department has reported you to the police who are conducting their own investigation;
You completed your claim for compensation on 30 September 2003;
Mr Hans Van den Bos has provided a report dated 30 January 2004 and Dr R Narendranathan has provided a report dated 2 February 2004.
Therefore the conclusions drawn from these facts are:
1. You have suffered a disability consisting of an illness or disorder of the mind;
2. Employment with the department was not a substantial cause of the disability;
3. The disability arose wholly or predominantly from reasonable administrative action taken in a reasonable manner by the department in connection with your employment;
4. The disability is wholly or predominantly attributable to serious and wilful misconduct on your part;
5. Your disability is not compensable under the Workers Rehabilitation and Compensation Act, 1986;
6. Even if your disability is compensable, by your conduct or by your resignation you have breached the obligation of mutuality and you are not entitled to any weekly payments of compensation.
Mrs Dalton filed a Notice of Dispute: see s 90 of the Act. She stated:
1. The worker does not believe that the employer has acted in a reasonable manner or with reasonable action.
2. There is no proof of any serious and wilful misconduct.
3. The worker’s disability is as a direct result of her employment and false allegations.
In this way the dispute ultimately came before the Deputy President for judicial determination: see s 94A and s 94C of the Act.
In brief, Mrs Dalton alleged that she suffered psychological injury (this is not disputed), described as severe depression, which made her unfit for work. The cause, she claimed, was overwork and stress attributable to her employment. The following findings by the Deputy President tell the story:
[689]I have already accepted the opinion of Dr Van den Bos that, for at least two years prior to September 2003, the applicant was suffering from a single, ongoing, developing condition of severe depression, the aetiology of which involved multiple factors, significant amongst which were cumulative stressors arising from her work environment. These included, for example, long hours consistently worked by her, the problems associated with staff members, the difficulties associated with the Aboriginal Family Services Program, the stress arising from the [P] [H] saga, and the impact of the aggressive/threatening conduct of clients, all as earlier discussed in these reasons.
[690]I have also accepted the doctor’s view that the severity of the applicant’s symptoms fluctuated over time.
[691]However, as he pointed out, the depression had become quite intense by late 2002 and resulted in substantial dysfunction in relation to the applicant’s work activities, constituting a significant level of disability and incapacity, notwithstanding the applicant’s actual attendance at work.
[692]I have additionally accepted the doctor’s opinion that the applicant’s symptoms were further exacerbated by the service on her, on 9 May 2003, of a notice of intention to suspend and the associated stated suspicion that she had been guilty of fraudulent misappropriation of funds.
[693]I have accepted his opinion that, from a point immediately after her suspension, the intensity of the applicant’s depressive symptoms was such that she became totally and permanently incapacitated for work. It will be recalled that he actually issued a certificate of total incapacity from 13 May 2003.
[694]I have also accepted his view that, whilst the ultimate disability and resultant incapacity of the applicant was the consequence of a complex of stressors, some of them being non work-related, those arising from the work environment at all times remained major contributing factors.
The respondent alleged that Mrs Dalton had an entrenched gambling habit or addiction, and that over a period starting in 1994 she misappropriated about $1.3 million from the department. The respondent alleged that the disability (and presumably the underlying depression) was attributable to the service on Mrs Dalton in May 2003 of a notice that she was suspected of having misappropriated money. The Deputy President summarised the notice as follows at [39]:
[39]The notice advised her that the Chief Executive suspected that she was liable to disciplinary action on the grounds that, between 1 July 2002 and February 2003, she had misappropriated domestic violence assistance payment monies for her own purposes and that she had been negligent in the discharge of her duties. It was said that she had failed to keep proper substantiating records in relation to the domestic violence payments. It was further asserted that her conduct in relation to the authorisation and provision of domestic violence assistance payments was contrary to the “Family and Youth Services Domestic Violence Manual of Procedure”.
The notice was given about 9 May 2003. On 12 May 2003 Mrs Dalton appealed against her suspension. On the same day she sent a letter of resignation. On 20 May 2003 that resignation was accepted with effect from 16 May 2003.
The hearing before the Deputy President was a long one. It lasted about 41 days. The respondent presented a detailed body of circumstantial evidence to support its claim that Mrs Dalton had misappropriated money.
I set out above the Deputy President’s findings in relation to Mrs Dalton’s condition. In relation to the notice suspending Mrs Dalton, he said:
[695]… I exclude consideration, as a relevant stressor, of the administrative action of the Chief Executive in suspending the applicant, as and when he did. In my opinion, the circumstances with which he was presented were such that his action constituted a reasonable administrative action taken in a reasonable manner affecting the applicant. He was confronted with an audit report that raised reasonable prima facie, suspicion of fraudulent, or at least improper, conduct that obviously warranted investigation. The outcome of the present proceedings and the fact that the auditors’ investigations left something to be desired do not gainsay that situation.
[696]It follows that the applicant has made out a prima facie case for compensability under s 30A of the Act.
Section 30A of the Act relevantly provides:
30A Psychiatric disabilities
A disability consisting of an illness or disorder of the mind is compensable if and only if -
(a)the employment was a substantial cause of the disability; and
(b)the disability did not arise wholly or predominantly from—
(i)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or
…
It is evident that the Deputy President meant, at [695], that the action of the Chief Executive was not a cause of Mrs Dalton’s disability, and was at most a contributing factor. This emerges from the following passage of his reasons (Dr Van den Bos was the psychiatrist called by Mrs Dalton, whose evidence the Deputy President accepted):
[488]Dr Van den Bos rejected the proposition that the allegations made against the applicant in May 2003 were really the major stressor that precipitated the onset of her major depressive condition. He considered that the case history indicated the existence of significant depression by October 2002 and that the later events merely exacerbated the condition of an already compromised person. Her state of depression was, he said, already quite intense as at October 2002. The fact that the applicant actually attended for work between October 2002 and May 2003 did not gainsay the proposition that she was, during that period, suffering a significant decline in function. Following the events of May 2003, her condition of depression worsened. On 23 October 2003 Dr Van den Bos issued a prescribed medical certificate to the effect that the applicant was totally unfit for work from 13 May 2003, a matter as to which he was not challenged in cross-examination.
[489]The ultimate view of Dr Van den Bos was that, during the period 2001 – 2003, the applicant suffered a single, ongoing depressive illness, the severity of the symptoms of which fluctuated over time. There was a single, underlying morbid condition with variable external manifestations of it, which arose from a complex of stressors. Whilst one of those eventually proved to be a deterioration in her marital relationship, this did not become significant until late 2003.
[490]I have already made the point that the evidence given by Dr Van den Bos was not controverted by other medical evidence. I re-iterate that I found him to be a convincing and compelling witness and I accept, as accurate, the opinions expressed by him.
Having concluded that s 30A of the Act did not disentitle Mrs Dalton to compensation for her disability, the Deputy President turned to s 30B. That section provides as follows:
30B - Effect of misconduct etc
(1) A worker who is acting in connection with, and for the purposes of, the employer's trade or business is presumed to be acting in the course of employment despite the fact that -
(a)the worker is acting in contravention of a statutory or other regulation applicable to the employment; or
(b)the worker is acting without, or in contravention of, instructions from the employer.
(2) However -
(a)a worker will not be presumed to be acting in the course of employment if the worker is guilty of misconduct or acts in contravention of instructions from the employer during the course of an attendance under section 30(3); and
(b)a disability is not compensable if it is established on the balance of probabilities that the disability is wholly or predominantly attributable to -
(i) serious and wilful misconduct on the part of the worker; or
(ii)the influence of alcohol or a drug voluntarily consumed by the worker (other than a drug lawfully obtained and consumed in a reasonable quantity by the worker).
(3) Subsection (2)(a) does not apply in a case of death or permanent total incapacity for work and subsection (2)(b) does not apply in a case of death or serious and permanent disability.
It is evident on its face that s 30B could not assist the respondent. Mrs Dalton had suffered “serious and permanent disability”. Accordingly, it was no answer to her claim that the disability might be “wholly or predominantly attributable to” misappropriation of money amounting to “serious and wilful misconduct”. The Deputy President made the point that s 30B(2)(b)(i) could not assist the respondent: at [697]. However, the Deputy President went on to consider the circumstantial case put by the respondent, in support of its claim that Mrs Dalton had misappropriated money. The Deputy President found that that case was not made out.
The Deputy President also made the following findings:
[739]As to the applicant’s relevant conduct, I have already held that it did not constitute serious and wilful misconduct, much less gross misconduct. Nor do I consider that my findings can possibly warrant a conclusion that any deliberate conduct of the applicant was such that the employer was entitled to conclude that it was incompatible with a continuing relationship of employer and employee. It was explicable by reference to the mental health state of the applicant and her consequential inability to cope with her work tasks.
[740]In those circumstances, the respondent’s rejection of the applicant’s claim on the ground of breach of mutuality necessarily founders on each of two quite independent bases.
[741]First, as I have earlier demonstrated, the concept of breach of mutuality can only relevantly arise if there was, at the time in question, at least a partial capacity for work. I have already held that, as of the date of termination of her employment, the applicant was totally incapacitated for work.
[742]Second, having regard to the circumstances in which the applicant resigned and her motives for tendering that resignation, there was, in fact, no breach of mutuality in the relevant sense. In realistic terms she had little other practical alternative. She could not longer cope due to her depression and her situation had manifestly become untenable.
[743]In the circumstances of this case not only was there no breach of mutuality, but such concept was inapplicable in any event.
Accordingly, the Deputy President determined that Mrs Dalton was entitled to compensation. The respondent appealed to the Full Bench of the Tribunal. Section 86(1) of the Act provides:
86 - Appeal on question of law
(1) An appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal.
The relevant grounds of appeal were as follows:
(1)That the Learned Trial Judge erred in law in considering and dealing with the circumstantial evidence led on behalf of the Appellant.
(2)That the Learned Trial Judge misdirected himself on the Briginshaw onus.
(3)That the Learned Trial Judge failed to have regard to the fact that the Respondent was in a position but had failed, to call evidence that may have explained the Appellant’s circumstantial case.
(4)That the Learned Trial Judge erred in law in finding that the Appellant failed to discharge the persuasive onus with respect to the Respondent’s misconduct.
(5)That the Learned Trial Judge erred in law in relation to Section 30B(3) of the Workers Rehabilitation and Compensation Act 1986 (the Act), in finding that the Respondent’s disability was “serious and permanent”.
(6)That the Learned Trial Judge erred in law in failing to apply or properly apply the provisions contained within Section 30A of the Act.
(7)That the Learned Trial Judge erred in law in finding that the question of breach of mutuality did not apply and that, in any event, there was no breach.
The Full Bench held that the Deputy President had erred in his assessment of the circumstantial evidence, and that this was an error of law. The respondent’s complaint was that the Deputy President failed properly to assess the circumstantial evidence, in that he assessed each item, or most items, separately, rather than in combination. The President of the Tribunal summarised the attack on the Deputy President’s reasons as follows:
[28]The Department’s case was that in this case there was plainly evidence, indeed there was strong evidence, of each of the circumstances relied upon. The error of law alleged by the Department was that the learned Trial Judge did not consider the ultimate improbability of Ms Dalton’s innocence demonstrated by the improbability upon improbability arising out of each item of circumstantial evidence. It was contended on appeal that the learned Trial Judge failed to consider whether the possibility of guilt demonstrated by each circumstance so buttressed the possibility of guilt demonstrated by every other circumstance that when the last circumstance was added to the mosaic the case against Ms Dalton was made out. The error complained of was the failure to properly assess the circumstantial evidence in accordance with the reasoning process explained in R v Szach (1979-1980) 23 SASR 563 and Shepherd v The Queen (1990) 170 CLR 573.
[29]The Department maintained that its appeal did not depend on a finding that the learned Trial Judge wrongly assessed the weight of much of the evidence it adduced. It was not simply that the weight of much of the evidence was underestimated, rather it was said that the error lay in the reasons for the underestimation of the evidence. It submitted that the only reason that could explain the gross underestimation of the force of so much of the evidence adduced by the Department was the failure of the learned Trial Judge to appreciate the very nature of circumstantial evidence.
The President upheld the submission and found that the Deputy President had erred in law. McCouaig DP agreed: [96]. So did Lieschke DP: [98]. The appeal was allowed, the orders for payment of compensation were set aside, and the matter was remitted for rehearing before another Deputy President.
Mrs Dalton appealed to the Full Court of the Supreme Court. She relied on a right of appeal conferred by s 86A(2) of the Act which came into force on 1 January 2009. That provision allowed an appeal to the Full Court “on a question of law against a decision of the Full Bench of the Tribunal”. The Full Court held that this provision did not apply to the case in question, because the decision of the Full Bench of the Tribunal was made on 2 December 2008, and the amendment did not apply to decisions made before it came into force: Dalton v The State of South Australia (In the Right of the Department for Families & Communities) [2010] SASC 45; (2010) 106 SASR 279 Duggan J at [47], with whom the other members of the Court agreed.
The Full Court considered other issues argued. It found that the Deputy President did not err in his assessment of the circumstantial evidence: Duggan J at [75]. The Full Court held that the attack on the reasons of the Deputy President did not raise a question of law. The following portions of the reasons of Duggan J adequately summarise his reasoning:
[85]Mr Peek QC submitted that if the single Judge failed to consider the combined effect of the individual items of evidence this would amount to an error of law. The Full Bench of the Tribunal reached its conclusion that there had been an error of law on the same basis.
…
[88]There was no suggestion on appeal that the trial Judge failed to consider the relevant evidence; on the contrary he did so in considerable detail. Furthermore, there was no submission that there was no evidence to support his ultimate conclusions. The reasoning which led the President to conclude that there was an error of law is set out in the following passage:
Whilst it was open, based on his methodology, for the learned Trial Judge to conclude that Ms Dalton’s “explanation was at least as plausible as any other alternative thesis” and to conclude that the Department “has signally failed to establish any perceivable temporal or other relationship or link between the entries in the applicant’s bank statements and the computer transactions” the evidence to which I have just referred was so powerful in suggesting a readily apparent and stark temporal relationship between the bank statements and the impugned work transactions it begged the question that the learned Trial Judge’s reasons for decision suggest was not asked, and that is: “What are the chances of all these things having happened and Mrs Dalton being innocent?” Notwithstanding the fact that the learned Trial Judge’s reasons contain phrases such as “the overall weight and significance of the evidence”; “the whole of the evidence”; “the backdrop of the totality of the evidence” ; and “their totality” , the fact that the learned Trial Judge’s reasons do not make it demonstrably clear that he posed for himself that question leads me to conclude that his evaluation of the circumstantial evidence was undertaken as he elsewhere suggested, and that is that he looked at it and evaluated it seriatim. I therefore agree with Mr Kourakis that the learned Trial Judge made the same error as that made by the Court of Appeal in Hillier. It follows that his conclusions resulted from a process of reasoning that was infected by errors of law.
Deputy President McCouaig concluded that there was an error of law for the same reason.
…
[90]In my view the assertion that the trial Judge erred in evaluating the circumstantial evidence did not justify the Full Bench in reviewing and determining for itself the reasonableness of his findings.
…
[92]In my view, however, it cannot be said that the question of whether the trial Judge has undertaken a logical and commonsense assessment of the circumstantial evidence gives rise to a question of law.
Footnotes omitted
The end result was that the Full Court dismissed the appeal as incompetent. It was incompetent because there was no right of appeal. The Full Court held, should it be necessary, that the appeal to the Full Court did not raise a question of law.
Having regard to the reasons of the Full Court, it is not surprising that Mrs Dalton then issued proceedings for judicial review. She claimed that the appeal from the Deputy President to the Full Bench was incompetent, because it did not raise a question of law. The respondent did not oppose an extension of time for the institution of these proceedings, and the Court granted an extension.
The jurisdiction of the Full Court to entertain that challenge is subject to s 88I of the Act:
88I - Finality of the Tribunal's decisions
No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except—
(a) as provided in this Act; or
(b)in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction.
Excess or want of jurisdiction – order allowing appeal
In allowing the appeal against the determination by the Deputy President the Full Bench considered and decided grounds 1-4 of the grounds of appeal. The relevant grounds of appeal are set out above at [19]. The main focus before the Full Bench was on ground 1, but grounds 2, 3 and 4 are aspects of the argument advanced. The remaining grounds were not determined: Jennings PJ at [40], McCouaig DP at [97], Lieschke DP at [102].
Grounds 1-4 on appeal to the Full Bench of the Tribunal challenged the conclusion by the Deputy President that the evidence before him did not establish that Mrs Dalton had dishonestly misappropriated funds from the Department. They went only to that finding of fact. But the conclusion by the Deputy President that misappropriation was not established was not decisive in the result, nor was it essential to his finding that Mrs Dalton was entitled to compensation. A finding that Mrs Dalton was guilty of “serious and wilful misconduct” would not have led to a rejection of her claim for compensation, as the Deputy President pointed out at [697]. Indeed, the Deputy President indicated that he made his findings in relation to the circumstantial evidence only in case he was found to be wrong in other aspects of his reasons: at [700].
The error identified by the Full Bench, for these reasons, did not lead to a conclusion that the appeal should be allowed. It could not lead to that conclusion.
To have the determination set aside (putting aside the question of whether the appeal raised a question of law) it was necessary for the respondent to show that the Deputy President erred in finding for the purposes of s 30A of the Act that Mrs Dalton’s employment (that is, stress attributable to the employment) was a substantial cause of the disability, or in making the finding that the disability did not “arise wholly or predominantly from” the notice served by the Chief Executive on Mrs Dalton in May 2003.
I have set out above the essential findings made by the Deputy President in relation to s 30A of the Act, which findings were favourable to Mrs Dalton. In light of those findings evidence that Mrs Dalton was guilty of fraudulent misappropriation of money, and so guilty of “serious and wilful misconduct” did not lead to a conclusion that Mrs Dalton was not entitled to compensation. That followed from the terms of s 30B of the Act.
In short, the Deputy President considered and accepted an argument that Mrs Dalton’s employment was “a substantial cause of the disability”. He found in her favour that the disability did not arise “wholly or predominantly” from the reasonable action taken by the Chief Executive. In light of the uncontested finding that she was suffering from serious and permanent disability, the issue of “serious and wilful misconduct” did not have to be determined. Of course, it was appropriate to deal with it.
As best I can tell it was not put to the psychiatrist called by Mrs Dalton, whose evidence the Deputy President accepted, that if Mrs Dalton had been misappropriating funds his opinion as to the cause of her disability must be wrong. Even if she had been misappropriating money, the findings in favour of Mrs Dalton under s 30A that the employment was a substantial cause of her disability might have survived.
In the Full Bench McCouaig DP and Lieschke DP recognised that there was a further issue. McCouaig DP said:
[42]The significance of this challenge extends beyond attacking just the validity of the learned Trial Judge’s alternative finding of no serious and wilful misconduct for the purposes of applying s 30B(2)(b)(i). It also goes to the reliability of the learned Trial Judge’s finding that stressors arising from the work environment at all times remained major contributing factors and his consequential finding that “Ms Dalton has made out a prima facie for compensability under s 30A”, given that those findings were expressly founded on opinions expressed by Dr Van Den Bos. If Ms Dalton had engaged in a systematic defrauding of her employer over a long period, as the respondent contends the circumstantial evidence shows she did, and if she was not honest with Dr Van den Bos about her activities and the potential causes for her anxiety, Dr Van den Bos’ opinions regarding the contributing causes of Ms Dalton’s disability would be founded on incomplete if not erroneous fact and thus be of dubious value. Dr Van den Bos was never informed about the extent of Ms Dalton’s poker machine gambling that long predated May 2003, and it is not apparent that he has ever turned his mind to the effects of her heavy gambling using the proceeds of her own fraud on her mental state prior to May 2003.
However, it is clear that neither he nor Lieschke DP decided this further issue. I add that while it is arguable that the reasoning summarised by McCouaig DP is correct, a finding that Mrs Dalton had engaged in fraudulent conduct did not necessarily lead to the conclusion foreshadowed by him. And, as already mentioned, it appears that it was not put to Dr Van den Bos that his conclusion could not stand if a finding of fraudulent misappropriation were made.
It follows that the Full Bench wrongly allowed the appeal against the decision of the Deputy President. It could have allowed the appeal only if it had dealt with grounds 5, 6 and 7 of the Notice of Appeal.
Did the Full Bench in allowing the appeal act in “excess or want of jurisdiction”?
In Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 the High Court revisited the meaning of “jurisdictional error” and its earlier decision in Craig v South Australia (1995) 184 CLR 163. In their reasons French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ summarised the position as follows (they are referring to the decision in Craig):
[72]First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union.
[73]As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.
Footnotes omitted
Ordinarily, an error by the Full Bench of the Tribunal in the exercise of its powers on appeal will not lead to the conclusion that it has acted without jurisdiction. An error in the course of its reasons will ordinarily be the kind of error that is made within jurisdiction, the jurisdiction of the Tribunal being to entertain an appeal and then consider and decide the issues raised. To err in doing this is not to act in excess or want of jurisdiction.
But in the present case the Full Bench has allowed an appeal without finding an error by the Deputy President that leads to the conclusion that the determination of the Deputy President was erroneous. The Full Bench has allowed the appeal without deciding that the determination is infected by error.
The jurisdiction of the Full Bench to hear and decide a challenge to the correctness of the Deputy President’s determination has not been exercised. The Full Bench has dealt only with a subsidiary issue, the decision on which does not enliven the power to set aside the determination by the Deputy President.
It seems obvious to me that the jurisdiction of the Full Bench to allow an appeal requires it to find an error that leads to the conclusion that the determination in question is erroneous. The finding of an error affecting the determination is a condition of the power or jurisdiction to allow an appeal. An error by the Full Bench in finding an error affecting the determination of a Deputy President will not necessarily deprive the Full Bench of jurisdiction to allow an appeal. But it lacks jurisdiction to allow an appeal unless it embarks on the task of finding an error affecting the determination. The Full Bench did not do this. It found error only in relation to an issue that was peripheral to the determination.
I consider that one can readily call a finding of error affecting the determination of the Deputy President a condition of the jurisdiction to allow the appeal.
This conclusion is supported by observations made by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194.
There, the Full Court of the Federal Court held that the Full Bench of the Industrial Relations Commission had erred in setting aside a decision by a Presidential Member of the Commission. The Full Court held that the Full Bench had constructively failed to exercise its jurisdiction. The Full Court of the Federal Court quashed the decision of the Full Bench in proceedings for relief under s 75(v) of the Constitution.
At [29] their Honours in the High Court said:
[29]As already noted, the Full Court held that the Full Bench of the Commission fell into jurisdictional error by treating an appeal under s 45 as an appeal of the kind which obliged the Full Bench to determine, in the absence of error on the part of Boulton J, whether there was or was not a circumstance within the meaning of s 170MW(3). It may be noted that, had the Full Bench proceeded on that basis, it would have exceeded its jurisdiction. It would not have failed to exercise its jurisdiction, whether actually or constructively.
They went on to hold that in fact the Full Bench had proceeded on the basis that it could intervene only if there was error on the part of the Presidential Member, and that in this respect it was correct: at [32].
The significant point for present purposes is that in the passage set out above their Honours said that the Full Bench would have acted without jurisdiction if it had proceeded on the basis that it could intervene in the absence of error on the part of the Presidential Member. They pointed out at [32], that on the other hand an error in deciding whether or not the Presidential Member made an error was an error within jurisdiction.
In short, their Honours identify as a jurisdictional error a misunderstanding of the nature of the jurisdiction, namely treating it as a jurisdiction to intervene in the absence of error.
For these reasons I conclude that the Full Bench acted in excess or want of jurisdiction in allowing the appeal.
Ordinarily that would lead to a conclusion that the matter be remitted to the Full Bench for further consideration. But it is apparent that ground 5 and ground 6 do not raise a question of law. The Court has heard enough for it to know that ground 5 and ground 6 are merely aspects of the argument as to whether the Deputy President should have found that Mrs Dalton was guilty of misappropriation of money, and should have found that the cause of her disability was not that found by the Deputy President. Although ground 7 raises a somewhat different issue, it rests on the same facts. It does not raise a question of law. This appears from the reasons of the Deputy President set out above at [17].
In the circumstances the order allowing the appeal against the Deputy President’s decision, and setting aside his orders, should be quashed. An order remitting the matter to the Full Bench should not be made.
Excess or want of jurisdiction – question of law
The grounds of appeal considered and decided by the Full Bench did not raise a question of law, nor do the other grounds.
Even if the Deputy President had erred in his approach to the assessment of the circumstantial evidence, that erroneous approach did not involve an error of law. The reasons given by Duggan J in Dalton, which I have summarised above, apply equally to the attack on the decision by the Deputy President.
As Duggan J says, there is no error of law in the mere making of a mistake in a finding of fact: South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal [2009] SASC 213; (2009) 105 SASR 1 at [52]-[57] Kourakis J, Dalton at [87] Duggan J.
It is not disputed that there was evidence before the Deputy President capable of supporting the finding that he made. The issue on appeal to the Full Bench was whether the Deputy President correctly assessed the weight of the circumstantial evidence before him. That was an issue of fact. The well recognised requirement to assess circumstantial evidence as a whole, and not item by item, is dictated by logic and convenience, and not by a rule of law: Dalton at [91]-[98] Duggan J.
Accordingly, the Full Bench erred in treating grounds 1-4 as raising a question of law. It was essential to the exercise of the jurisdiction to entertain and decide the appeal by the Full Bench that it raise a question of law: South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal at [49] Kourakis J.
For these further reasons the Full Bench acted in excess or want of jurisdiction in allowing the appeal against the Deputy President.
Conclusions
I would order that the orders made by the Full Bench of the Workers Compensation Tribunal on 2 December 2008 and 28 January 2009 be quashed. I would not remit the matter to the Full Bench for further consideration. However, the appeal to the Full Bench remains. There is no reason why Mrs Dalton cannot apply to the Full Bench for an order striking out that appeal as incompetent, and an order making any appropriate ancillary orders.
DUGGAN J: I agree with the orders proposed by the Chief Justice for the reasons which he has prepared.
NYLAND J: I agree with the reasons of Doyle CJ and the order he proposes. I would not remit the matter to the Full Bench of the Workers Compensation Tribunal for further consideration.
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